Federalist #65 on Impeachment

The Constitution’s parts describing impeachment are few—the first two are in Article I, section 3:

The House of Representatives . . . . . . shall have the sole Power of Impeachment.

. . . The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

There is a brief mention in Article III of jury trial not being available for impeachment, and there is probably a suggestion in Article I that members of Congress will not usually be impeached, as each house has the power to (I, 5) to expel one of their members on their own. But of course, the most famous passage on the subject is the fourth and last section of Article II:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Treason is defined by the Constitution itself, and bribery is defined by statute. But what could constitute a high crime or a misdemeanor? Particularly if it is not a statutory crime, as various acts of Nixon, and, more controversially, certain acts of Clinton, were?

On this question we should turn to Federalist #65 . Part of the papers on the powers of the Senate, as a whole #65 defends the lodging of the power to try impeachments there. But it is rather telling on the nature of impeachment itself. It says the subjects of impeachment

. . . are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.

So, the ultimate decision is left to the most political branch, and I think we can immediately see that Obama’s violations of the Constitution can be quite plausibly seen as violations and abuses of the public trust. For my Kevin Williamson-fortified bill of particulars, scroll down to the post below.

And to repeat, the farthest I go is to call upon Republican members of the House to begin airing threats of impeachment, as way to restrain Obama from further egregious violations of the Constitution, and as a way to put it on record that those violations did provoke attempts to employ the sort of check spoken of in Federalist #51 . More below, but let us return to Federalist #65 :

In many cases it [impeachment] will connect itself with the pre-existing factions . . . and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties than by the real demonstrations of innocence or guilt.

Impeachment is not so political an institution that it is simply about public confidence or lack of it—it requires an actual infraction, and conviction should only occur with a convincing demonstration of guilt. But its nature as a Federalist #51 “check” is also evident:

. . . What, it may be asked, is the true spirit of the institution itself? Is it not designed as a method of NATIONAL INQUEST into the conduct of public men? . . . The model from which the idea of this institution has been borrowed pointed out that course to the convention. In Great Britain it is the province of the House of Commons to prefer the impeachment, and of the House of Lords to decide upon it. Several of the State constitutions have followed the example. As well the latter as the former seem to have regarded the practice of impeachments as a bridle in the hands of the legislative body upon the executive servants of the government. Is not this the true light in which it ought to be regarded?

So just as the veto is the primary check the executive has against the legislative branch, that of impeachment is the primary check the legislative branch has against the executive one, although it can be used against judges and any other “Civil officers.” Read in light of Federalist #51 , this means that impeachment is designed to prevent tyrannical use of or concentration of power, and in particular, is designed to preserve the separation of powers.

Now the main point of Federalist #65 is that the Senate is the most appropriate place for the trial of an impeachment to occur—in that sense it will function as a court. Impeachment is a use of something like judicial power by the legislative branch. Or since it is a political affair that must be somewhat like a judicial proceeding, we might think of it as a mix of legislative and judicial power, but one only exercised by the legislative branch.

. . . The necessity of a numerous court for the trial of impeachments is equally dictated by the nature of the proceeding. This can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security. There will be no jury to stand between the judges who are to pronounce the sentence of the law and the party who is to receive or suffer it. The awful discretion which a court of impeachments must necessarily have to doom to honor or to infamy the most confidential and the most distinguished characters of the community forbids the commitment of the trust to a small number of persons.

The import of what I’ve bold-faced should be obvious. But we should also notice a key character of impeachment here: it is a pronouncement of dishonor. The presidency (and to a lesser degree, all the offices the president has a direct hand in appointing) is by its nature an office of honor . Impeachment renounces that previous honoring.

These considerations seem alone sufficient to authorize a conclusion, that the Supreme Court would have been an improper substitute for the Senate, as a court of impeachments. There remains a further consideration, which will not a little strengthen this conclusion. It is this: the punishment which may be the consequence of conviction upon impeachment is not to terminate the chastisement of the offender. After having been sentenced to a perpetual ostracism from the esteem and confidence and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law. Would it be proper that the persons who had disposed of his fame, and his most valuable rights as a citizen in one trial, should, in another trial, for the same offense, be also the disposers of his life and his fortune?

So again, we see that certain aspects of a judicial due process, aspects focused on the guilt or innocence of a specific individual with respect to specific charges, must be maintained. And yet also, we again see the raw political character of the act, connected to it its declaring dishonor and enacting removal/disqualification. It is the closest thing we have to Athenian ostracism. That points to its potentially abuse-able character, but also to the perennial reasons why republican societies have need of such an institution, such as those Aristotle pointed out in the Politics .

The main take-away from all the above is this: Hamilton, the likely author of #65 , and Madison and Jay also, to the extent this particular paper was run by them in advance (scholars think such a preview was done sometimes, but not generally), did not understood impeachment for “high crimes and misdemeanors” as referring to an easily defined category. Violations of the nation’s constitutional rules (along with acts which might not be obvious violations of the Constitution’s text) which

1) are “injuries . . . to the society itself,”
2) or which are “abuses or violations of the public trust,”
3) or which require a checking action to preserve separation of powers,
4) or which in general deserve “perpetual ostracism from the esteem and confidence and honors and emoluments of his country,”

are all impeachable acts.

Obama’s acts easily meet the criteria for 2) and 3), and in the manner of being obvious violations of the text. I have established that below, and without even going into the issues raised by Obama’s likely obstruction of the various scandal-investigations. My next and last post on impeachment will address 4), the more general case for why he deserves impeachment.

So, there is no textual constitutional barrier to Barack Obama’s impeachment; this is even more obvious when the relevant passages are understood as The Federalist understands them. If we have qualms about impeaching him, as most of us do, these cannot be soundly-framed textual constitutional qualms.  In the limited sense of the matter that only considers what kinds of acts impeachment was designed to be utilized against, it is a fact that Obama is impeach-worthy.